Paramount Global Protection Pty Ltd v Gorge - [2008] NSWWCCPD 127

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Paramount Global Protection Pty Ltd v Gorge [2008] NSWWCCPD 127
APPELLANT:	Paramount Global Protection Pty Ltd
RESPONDENT:	Mina Samy Gorge
INSURER:	CGU Workers Compensation (NSW) Limited Agent for the NSW WorkCover Scheme
FILE NUMBER:	WCC2357-08
DATE OF ARBITRATOR’S DECISION:	5 June 2008
DATE OF APPEAL DECISION:	30 October 2008
SUBJECT MATTER OF DECISION:	Injury; causal nexus between assault and later back symptoms; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; expert opinion.
PRESIDENTIAL MEMBER:	Acting Deputy President Anthony Candy
HEARING:	On the papers.
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	PK Simpson & Co Solicitors
ORDERS MADE ON APPEAL:	The decision of the Arbitrator dated 5 June 2008 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
Each party is to bear his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Mina Samy Gorge (‘the worker’) was punched in the face while employed as a security guard by Paramount Global Protection Pty Ltd (‘the employer’) on 26 March 2006. This appeal concerns the question whether in addition to facial and dental injuries the worker also injured his back in the assault.
He was soon afterwards taken to St Vincent’s Hospital and the following day saw a general practitioner, Dr Gerges, who gave him a medical certificate in respect of his absence from work up to 30 March 2006. The doctor’s diagnosis was: “deep laceration on lower lips loose lower and upper teeth”. The worker continued to see Dr Gerges and obtained further medical certificates from him.
The worker sought dental attention on 28 March 2006 when he attended Dr Ishak. That practitioner found that there had been complete avulsion of the upper right central and lateral incisors and some mobility in the lower front teeth. Dr Ishak also found there was some tenderness and mobility of the upper right canine.
A claim was made to the employer’s insurer, CGU Workers Compensation (NSW) Limited, which was an agent for the NSW WorkCover Scheme. I shall refer to this as the “insurer” for convenience. The claim was accepted and payments of compensation made.
At some later time the worker began to experience low back pain. Dr Ong, a general practitioner, saw the worker with a complaint of low back pain on 25 August 2006. A CT scan was performed on 28 August 2006 and the worker was referred to an orthopaedic surgeon, Dr Rosenberg. The CT scan was reported on by Dr Lazarus as showing an annular bulge at L3/L4 with no spinal stenosis and a left sided disc protrusion at L4/L5 with mass effect on the left L5 nerve root in the lateral recess.
On 12 February 2007 the insurer advised that liability for the back injury was disputed. This was done on the basis that the injury to the back had been said to have occurred on 28 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWWCCPD 127
Decision Date: 30 October 2008

CaseChat Overview and Summary

In this appeal, the employer, Paramount Global Protection Pty Ltd, contests an arbitrator's decision that it was liable for compensation to its former employee, Gorge, for an assault that occurred in the workplace. The crux of the dispute is whether there is a causal link between the assault and Gorge's subsequent lumbar symptoms. The matter was heard in the NSW Civil and Administrative Tribunal.

The legal issues that arose before the court were whether the fresh evidence submitted by the employer, which was not presented during the original arbitration, should be admitted and if so, whether it would have led to a different outcome. The employer argued that the additional evidence, which included medical records and hospital reports, demonstrated a significant delay in the onset of Gorge's lumbar symptoms, challenging the causal link between the assault and the symptoms. The worker, on the other hand, contended that he had never claimed to have suffered back symptoms immediately following the assault and therefore, the new evidence had no relevance.

The court examined the criteria for admitting fresh evidence under the relevant legislation and Practice Direction No.6. It noted that the employer had not adequately justified why the evidence could not have been obtained earlier or why it should be admitted in this instance. The court found that the fresh evidence did not substantiate a claim of a significant delay in symptom onset and did not provide a credible basis to question the causal link established by the original arbitrator. Consequently, the court decided to revoke the original decision and remit the matter to another arbitrator for a fresh determination.

The final orders of the tribunal were to revoke the decision of the original arbitrator and to remit the matter to another arbitrator for re-determination in accordance with the reasons provided. The tribunal did not accept the fresh evidence presented by the employer, finding it insufficient to warrant a different outcome.

Orders

Orders of the court

The decision of the Arbitrator dated 5 June 2008 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCEEach application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;·the evidence is credible;·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or ·it is just to admit the evidence in all the circumstances of the individual case.Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.” Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:·a schedule of the fresh or additional evidence;·a copy of the fresh or additional evidence;·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be. Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition. In this case the employer does seek to rely on additional evidence which is said was obtained after the arbitration hearing on 3 June 2008. This consists of:·the clinical notes of Dr Gerges from 27 March 2006 to 12 May 2008;·the Sutherland Hospital Emergency Department record dated 30 March 2008;·Advanced Personnel Management letters of 28 August and 25 September 2007;·St George Hospital Emergency Department record dated 29 October 2006. These documents are said to show that there was a significant delay in the onset of the worker’s lumbar symptoms following the assault in question on 26 March 2006. Apart from this no submission is made as to why this additional evidence should be admitted. On behalf of the worker it is submitted that he had never asserted that he suffered back symptoms at or soon after the assault and therefore the new evidence sought to be relied on has no relevance.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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